State v. Williams

Court of Appeals of North Carolina

State v. Williams

326 S.E.2d 379, 73 N.C. App. 282, 1985 N.C. App. LEXIS 3254

CourtCourt of Appeals of North Carolina

DecidedMarch 5, 1985

DocketNo. 845SC318

StatusPublished

This text of 326 S.E.2d 379 (State v. Williams) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Williams, 326 S.E.2d 379, 73 N.C. App. 282, 1985 N.C. App. LEXIS 3254 (N.C. Ct. App. 1985).

Pincite

Opinion

PARKER, Judge.

Although not presented as an assignment of error, we will exercise our discretion under Rule 2, Rules of Appellate Procedure, to examine whether the aggravating factor found by the trial judge, that “[defendant did have time to deliberate and premeditate in the obtaining and use of the Deadly Weapon which caused the Killing which constituted this crime” was a proper aggravating factor pursuant to G.S. 15A-1340.4(a).

General Statutes 15A-1340.4(a) provides that a judge “may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing. ...” A determination by the preponderance of the evidence in the sentencing hearing that a defendant premeditated and deliberated in a killing can be an aggravating factor to be used in sentencing a defendant who pleads guilty to second degree murder. State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983).

In the present case the judge’s only finding in aggravation that “defendant did have time to deliberate and premeditate in the obtaining and use of the Deadly Weapon which caused the Killing which constituted this crime” (our emphasis), does not increase defendant’s culpability, because defendant could have had time to deliberate and premeditate in the killing, but still could have killed the victim without deliberation and premeditation. The finding that he had time to deliberate and premeditate does not mean that he actually premeditated and deliberated in the killing. As this finding does not increase defendant’s culpability, it is not reasonably related to the purposes of sentencing and is not a proper aggravating factor under G.S. 15A-1340.4(a).

On resentencing, in order to find premeditation and deliberation as an aggravating factor, the trial judge must consider the [286]*286evidence and determine whether, by the preponderance of the evidence, the defendant (i) had the specific intent to kill the victim before the actual killing, State v. Misenheimer, 304 N.C. 108, 282 S.E. 2d 791 (1981); and (ii) executed that intent in a cool state of blood in furtherance of a fixed design to gratify a feeling of revenge or to accomplish an unlawful purpose, and not under the influence of a violent passion suddenly aroused by sufficient provocation. State v. Marshall, 304 N.C. 167, 282 S.E. 2d 422 (1981); State v. Faust, 254 N.C. 101, 118 S.E. 2d 769, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed. 2d 49 (1961). Under the holding in Melton, if the trial judge makes an actual finding of premeditation and deliberation, supported by the preponderance of the evidence, this finding may properly be weighed as an aggravating factor for purposes of sentencing in this case.

The weighing of aggravating and mitigating factors is within the sound discretion of the trial judge. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, review denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). In the present case, however, where the aggravating factor was incorrect, the trial judge could not have properly balanced the aggravating and mitigating factors, and the case must be remanded for resentencing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983); State v. Gaynor, 61 N.C. App. 128, 300 S.E. 2d 260 (1983).

For the reason stated defendant’s sentence must be vacated, and the case remanded for resentencing.

Vacated and remanded.

Chief Judge HEDRICK and Judge WHICHARD concur.

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PARKER, Judge.

Although not presented as an assignment of error, we will exercise our discretion under Rule 2, Rules of Appellate Procedure, to examine whether the aggravating factor found by the trial judge, that “[defendant did have time to deliberate and premeditate in the obtaining and use of the Deadly Weapon which caused the Killing which constituted this crime” was a proper aggravating factor pursuant to G.S. 15A-1340.4(a).

General Statutes 15A-1340.4(a) provides that a judge “may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing. ...” A determination by the preponderance of the evidence in the sentencing hearing that a defendant premeditated and deliberated in a killing can be an aggravating factor to be used in sentencing a defendant who pleads guilty to second degree murder. State v. Melton, 307 N.C. 370, 298 S.E. 2d 673 (1983).

In the present case the judge’s only finding in aggravation that “defendant did have time to deliberate and premeditate in the obtaining and use of the Deadly Weapon which caused the Killing which constituted this crime” (our emphasis), does not increase defendant’s culpability, because defendant could have had time to deliberate and premeditate in the killing, but still could have killed the victim without deliberation and premeditation. The finding that he had time to deliberate and premeditate does not mean that he actually premeditated and deliberated in the killing. As this finding does not increase defendant’s culpability, it is not reasonably related to the purposes of sentencing and is not a proper aggravating factor under G.S. 15A-1340.4(a).

On resentencing, in order to find premeditation and deliberation as an aggravating factor, the trial judge must consider the [286]*286evidence and determine whether, by the preponderance of the evidence, the defendant (i) had the specific intent to kill the victim before the actual killing, State v. Misenheimer, 304 N.C. 108, 282 S.E. 2d 791 (1981); and (ii) executed that intent in a cool state of blood in furtherance of a fixed design to gratify a feeling of revenge or to accomplish an unlawful purpose, and not under the influence of a violent passion suddenly aroused by sufficient provocation. State v. Marshall, 304 N.C. 167, 282 S.E. 2d 422 (1981); State v. Faust, 254 N.C. 101, 118 S.E. 2d 769, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed. 2d 49 (1961). Under the holding in Melton, if the trial judge makes an actual finding of premeditation and deliberation, supported by the preponderance of the evidence, this finding may properly be weighed as an aggravating factor for purposes of sentencing in this case.

The weighing of aggravating and mitigating factors is within the sound discretion of the trial judge. State v. Davis, 58 N.C. App. 330, 293 S.E. 2d 658, review denied, 306 N.C. 745, 295 S.E. 2d 482 (1982). In the present case, however, where the aggravating factor was incorrect, the trial judge could not have properly balanced the aggravating and mitigating factors, and the case must be remanded for resentencing. State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983); State v. Gaynor, 61 N.C. App. 128, 300 S.E. 2d 260 (1983).

For the reason stated defendant’s sentence must be vacated, and the case remanded for resentencing.

Vacated and remanded.

Chief Judge HEDRICK and Judge WHICHARD concur.

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326 S.E.2d 379, 73 N.C. App. 282, 1985 N.C. App. LEXIS 3254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-williams-ncctapp-1985.

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